Coble v. Dretke

• Decision Date: 22 March 2006
• Docket Number: No. 01-50010.,01-50010.
• Citation: 444 F.3d 345
• Parties: Billie Wayne COBLE, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

444 F.3d 345

Billie Wayne COBLE, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 01-50010.

United States Court of Appeals, Fifth Circuit.

March 22, 2006.

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Allen Richard Ellis, Law Offices of A. Richard Ellis, Mill Valley, CA, for Coble.

Edward Larry Marshall, Austin, TX, for Dretke.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The opinion of the court issued on July 18, 2005 and reported at 417 F.3d 508 is withdrawn, and the following is substituted.

Petitioner, Billie Wayne Coble ("Coble"), was convicted of capital murder in the state court of Texas and sentenced to death. Based on a Certificate of Appealability ("COA") on two issues, one granted by the district court and one by this court, Coble appeals the district court's denial of federal habeas relief. We AFFIRM the district court's judgment.

I

Coble was convicted of the capital murders of his brother-in-law, father-in-law, and mother-in-law. The facts of Coble's crimes are set forth in the opinion of the Texas Court of Criminal Appeals ("TCCA") disposing of Coble's direct appeal.

Coble was having marital problems and separated from his wife, Karen Vicha, not long before the murders. Coble kidnapped Karen Vicha at knife-point. He attempted to convince her not to divorce him, but eventually released her unharmed. Coble v. State, 871 S.W.2d 192, 195-96 (Tex.Crim.App.1993) (en banc). Several weeks later, Coble was seen driving around the area where Karen Vicha and her parents lived. Id. at 196. That afternoon, he was waiting at his wife's house when her daughters returned from school. Coble handcuffed and tied up her three children and one of their cousins. Id. Next, Coble cut the phone lines to the house and went down the street to the house of his brother-in-law, Bobby Vicha. Coble and Bobby Vicha struggled, and Coble ultimately shot Bobby Vicha in the neck. Id. at 196-97 & n. 6. He returned to Karen Vicha's house for a period of time and then went across the street to the Vicha family home. Coble fatally shot Karen Vicha's parents, Zelda Vicha and Robert Vicha. He cut the phone lines to the Vicha family home as well. Id. at 196-97.

When Karen Vicha arrived home from work, Coble was waiting for her. Id. at 197. He admitted to killing her parents and brother and told her that Bobby Vicha had shot him. He then handcuffed her and drove her out to a rural area in her car. Karen Vicha later testified that Coble assaulted her during the drive. Coble was eventually apprehended after a brief high-speed pursuit, which ended when Coble crashed into a parked car. At the hospital where Coble and Karen Vicha were taken for treatment, Coble spontaneously told various hospital personnel and police officers that he had killed three people. Id.

Coble was subsequently convicted of capital murder. At the close of the penalty phase evidence, the jury answered the special issues in the affirmative and the judge sentenced Coble to death. His direct appeal was affirmed by the TCCA, and the Supreme Court denied his petition for a writ of certiorari. Id. at 208, cert. denied, Coble v. Texas, 513 U.S. 829, 115 S.Ct. 101, 130 L.Ed.2d 50 (1994).

Coble filed an application for a state writ of habeas corpus, alleging twenty-six claims for relief. The trial court held an evidentiary hearing on five of these claims, but recommended that relief be denied. The TCCA agreed, adopted the trial court's findings of fact and conclusions of law, and denied relief in an unpublished order. Ex parte Coble, No. 39,707-01 (Tex.Crim.App.1999).

Coble then applied for federal habeas relief, and the district court appointed counsel. Coble filed his habeas petition, alleging twenty-five claims, and the district court stayed his execution pending resolution of the petition. The district court denied Coble's request for an evidentiary hearing and denied the writ. The district court did, however, grant COA on the issue of ineffective assistance of counsel. Coble then petitioned for COA from this court on eleven additional grounds. We granted COA on the issue of whether the "special issue" interrogatories in the Texas capital sentencing instruction precluded effective consideration of Coble's mitigating evidence in violation of the mandates of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ("Penry I"), and Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) ("Penry II"). Coble v. Cockrell, 80 Fed.Appx. 301 (5th Cir.2003).

II

"In a habeas corpus appeal, we review the district court's findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court's decision as the district court." Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998). Because Coble filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the district court's federal habeas review was governed by AEDPA.

Under AEDPA, habeas relief is not available to a state prisoner

with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A state court decision is "contrary to ... clearly established Federal law, as determined by the Supreme Court" if: (1) "the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases," or (2) "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is an unreasonable application of clearly established Supreme Court precedent if the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08, 120 S.Ct. 1495. The inquiry into unreasonableness is objective. Id. at 409-10, 120 S.Ct. 1495. A state court's incorrect application of clearly established Supreme Court precedent is not enough to warrant federal habeas relief; in addition, such an application must also be unreasonable. Id. at 410-12, 120 S.Ct. 1495. The state court's factual findings are presumed to be correct, and the habeas petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III

Coble makes multiple ineffective assistance of counsel arguments. These claims are governed by the familiar standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Coble must establish: (1) "that counsel's representation fell below an objective standard of reasonableness" and (2) that the deficient representation caused prejudice, which requires a showing that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Williams, 529 U.S. at 390-91, 120 S.Ct. 1495 (quoting Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052). Our scrutiny of counsel's performance is "highly deferential" and there is a "strong presumption" that any alleged deficiency "falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Coble claims trial counsel did not adequately prepare for the sentencing phase of trial because they failed to interview and prepare the witnesses who testified at trial. In the cases cited by Coble, trial counsel failed to conduct any investigation of witnesses who might have provided alibis or who were eyewitnesses. See, e.g., Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir.1994) ("[Counsel's] complete failure to investigate alibi witnesses fell below the standard of a reasonably competent attorney practicing under prevailing professional norms."). See also Rompilla v. Beard, ___ U.S. ___, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (counsel provided ineffective assistance by failing to examine a file on defendant's prior convictions at sentencing phase of capital murder trial despite knowing the state's strategy was to emphasize defendant's violent character). In this case, Coble concedes that trial counsel's professional investigator interviewed all of the witnesses prior to their testimony. Furthermore, even assuming counsel failed to fully prepare these witnesses, Coble only argues that these witnesses would have been "more effective" if they had been better prepared, which does not come close to suggesting that "but for counsel's errors, the result of the proceeding would have been different." Coble also alleges that trial counsel failed to call favorable witnesses to testify. "Complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative." Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir.1981) (quoting Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978)). Coble has not established what information these witnesses would have provided. Based on what can be gleaned from his briefs, these witnesses would have presented testimony already provided by other witnesses.¹ Counsel's decision not to present cumulative testimony does not constitute ineffective assistance. Murray...